In a continuation of its trend of passing “employee friendly” legislation, on May 8, 2013, the New York City Council passed the “Earned Sick Time Act,” which will require many employers in the City to provide employees with paid sick time, as well as paid time off for other absences and emergencies. The vote of 45-3 is enough to override Mayor Bloomberg’s expected veto, so the bill is likely to become law.

Significantly, while touted as a sick leave statute, the new bill actually requires employers to provide paid time off for other types of absences – which will require many companies to modify their policies. This is a significant move by the Council, as it is the first time that any law has required New York employers to give workers time off with pay.

Council Speaker Quinn, a supporter of the new law, stated that it will give sick leave to one million workers and that “this is not just a great day for workers. It is a great example of how we can bring people together through the legislative process.”^[1]

Key Facts About The Act

When will it go into effect and what employers are covered?

The Act should be effective:
- April 1, 2014, for employers with at least 20 employees.
- October 1, 2015, for employers with 15-19 employees or 1 domestic worker.
- Small employers must provide unpaid time effective April 1, 2014.

Interestingly, the bill provides that it will NOT go into effect if the City economy in 2014 has eroded, according to certain economic indicators.

What employees are covered?

Any employee who works more than 80 hours in a year is covered.
Employees will accrue time based on the number of hours worked.

How much paid time off must we give?

Covered employers will be required to provide up to 40 hours (generally 5 work days) per year, of paid time off (“PTO”) for illness and other reasons.
The amount of paid time will vary, as workers will accrue 1 hour of sick time for every 30 hours worked, up to the maximum accrual of 40 hours per calendar year.

hat types of absences are covered?

The law will require an employer to provide paid time off for any absence due to:

the employee’s mental or physical illness, injury or health condition;
a need for medical diagnosis or treatment or “preventive medical care”;
to care for a family member who needs medical diagnosis, care or treatment, or who needs preventive medical care;
closure of the employee’s place of business by order of a public official due to a public health emergency; and
to care for a child whose school or childcare provider has been closed by order of a public official due to a public health emergency.

Can we regulate the use of this time?

In short – yes. Under the Act, employers may require reasonable notice of an employee’s need to use accrued time, up to 7 days if the need is foreseeable.
Employers may require documentation to support the authorized reason for use of accrued time, if the absence is for more than 3 consecutive work days.

What records must be kept?

Employers must allow employees, other than domestic workers, to carry over accrued unused time from one calendar year to the next, but the employer can cap usage at 40 hours in a calendar year.
Employers must retain records demonstrating compliance with the measure for 2 years and provide access to such records during a governmental investigation.
Employers must provide employees at time of hire with a written notice of the employee’s rights to sick time under the law. This notice must be provided in both English and the employee’s primary language, provided that the City’s Department of Consumer Affairs has issued a model notice in such language.

What about union contracts?

The law does not apply to employees covered by a valid collective bargaining agreement (“CBA”) in effect when the law goes into effect.
After the law is effective, the employer and union may agree to waive the provisions of the law, if the CBA provides for a comparable benefit.
- However, in the grocery and construction industries, the parties to a CBA may agree to waive the Act, even if the CBA does not provide for a comparable benefit.

What if we are too small to be covered?

Even businesses not covered by the paid sick time requirement must provide the same amount of sick time to their employees, although such time may be unpaid.

What if we already have paid sick time?

Employers covered by the legislation who already provide for paid time off, of a sufficient amount, and who allow use of such paid leave for the same reasons as provided for in the Act are not required to provide additional sick time.
However, policies will need to be reviewed, to make sure that they cover the different types of absences allowed for in the Act.

Remedies for Violation

Penalties for violation will include lost wages, reinstatement, and civil penalties, as follows:

For each instance an employee takes time off, and is not paid, the employee may recover $250 or 3 times the amount of wages which should have been paid, whichever is greater.
For each instance an employee is unlawfully denied time off, the employee may recover $500.
Retaliation against employees who use paid or unpaid time is prohibited. For each instance of unlawful retaliation, the employee may recover full compensation, $500, and equitable relief, as appropriate; if the retaliation includes unlawful discharge, the employee may recover full compensation, $2500, and equitable relief, including reinstatement, as appropriate.
The Act also calls for monetary penalties against employers.

An employee may file a complaint with the City’s Department of Consumer Affairs, which shall then be investigated by the Department.

Final Thoughts

It was kind of the City Council to give employers until 2014 to come into compliance with the Act, as it will require many companies to carefully review their policies and practices. Since the Act covers more than just sick time, employers will have to review sick leave policies to make sure that all absences the Act requires to be covered are mentioned. In addition, employers will need to review how PTO is accrued, and make sure that part time employees are allowed some PTO time, as required by the law.

Moreover, the passage and publicity surrounding the Act will likely increase the popularity of sick time and other paid time off – so more employees will be taking advantage of this benefit. There is also, of course, the added bonus that it gives employees one more thing to complain about!

In short, this law is going to take some adjustment for employers.

For more information about this client advisory, please contact:

Barbara E. Hoey
(212) 808-7853
bhoey@kelleydrye.com

[1] Kate Taylor. City Council Approves Bill Mandating Sick-Day Pay, N.Y. TIMES, May 8, 2013, at A27 available at http://www.nytimes.com/2013/05/09/nyregion/new-york-council-approves-paid-sick-leave-measure.html?_r=0

New York City’s ​“Earned Sick Time Act” – Mandates Paid Sick Leave, Even For Employees Who Aren’t Sick